Responsibility of International Organizations II: Where is the internationally wrongful act?

by Kristen Boon

The Draft Articles on the Responsibility of International Organizations (“RIO”) provide that for an internationally wrongful act to occur, (i) the conduct must be attributable to the IO under international law, and (ii) constitute a breach of an international obligation of that IO. Greg Fox will be blogging on the important question of attribution later this week. I would like to comment on the second issue of what constitutes a breach of an international obligation by an IO.

Like the articles on State responsibility, the RIO articles differentiate between primary and secondary rules in that they do not define the source obligations that create international responsibility. Instead, “primary” determinations are left to other bodies of law like treaties, custom, and, somewhat controversially, the rules of the organization. See draft Art. 2(b) & 9. The purpose of the draft articles is to develop the “secondary” rules, that is to say, the legal consequences of a failure to fulfill the primary rules.

As noted in my last blog, one persistent criticism of the draft RIO articles is that a material body of practice with regards to international organizations is lacking. Indeed, many States and IOs have noted that it is difficult to comment on the proposed articles because so many of the questions they raise are abstract. James Crawford’s lucid comment that “there is lots of customary law on State responsibility, and the action of international organizations is by definition linked to the actions or omissions of States” reminds us that State responsibility fills some of the gaps. Nonetheless, a serious question remains: what value do secondary rules have if there is little consensus on the primary rules of what constitutes an internationally wrongful act by an international organization?

Even the most vocal critics of the RIO draft articles concede that a valuable contribution of the current project is to prohibit states from creating or authorizing IOs to circumvent their own obligations under the law of State responsibility. In other words, states cannot “outsource” their responsibility to IOs. See e.g. the widely supported draft Arts. 16 & 60. In addition, the draft articles prohibit states from aiding or assisting, and coercing an IO in the commission of an internationally wrongful act. In this area, the ILC can draw on established practice in European courts, including the Bosphorus case, the Waite and Kennedy v. Germany case, and the Application of M. v. Germany case before the ECHR.

In my view, two other key benefits are apparent, and I’d be interested in readers’ reactions. First, increasingly international organizations, rather than states, are becoming the relevant international actor. Nonetheless, the proliferation of IOs on the international scene and the intensification of multilateral endeavors has not been met with corresponding accountability and responsibility mechanisms. The development of secondary rules on responsibility is not only an important step in addressing part of the accountability deficit; the RIO articles will also harmonize the practical development and application of new rules including primary rules on responsibility. The outcrop of new cases challenging international organizations directly and indirectly, (see e.g. the Kadi cases before the ECJ on Security Council Resolution 1267, and the much criticized admissibility decision by the ECHR in Behrami & Saramati) suggests that we are on an upward trend with regards to demands for redress against IOs, and that these secondary rules can and will encourage consistency amongst courts in their approach.

Second, as Professor Giorgio Gaja, Special Rapporteur on the Responsibility of International Organizations notes in his important first report to the ILC, a number of the most controversial questions affecting IO responsibility were raised but left aside during the development of the draft articles for State responsibility. The RIO articles take the State responsibility articles as their point of departure, but the interconnectedness between IOs and states mean that an important void still needs to be addressed. Art. 63, which recognizes variations in IO regimes and responsibilities through its provision on Lex Specialis, provides that special rules will displace the general articles in appropriate situations. Although this provision may prove problematic if the exceptions swallow the rule, at present it recognizes the evolutionary process in play and accounts in part for the lack of practice to date.

5 Responses

Please forgive me if these questions are weird, but I am interested in this from the layman’s perspective (I am doing research in the (history of) philosophy of IL): You’ve mentioned the ECJ’s Kadi case and I am not sure I understand how it fits here. Just because it entailed challenging an IO in general or more specifically?
WRT Kadi, recently Simma (and Benvenisti) have raised an important point potentially pertaining to RIO: granting individuals access to court. But the question “Are injured individuals supposed to be able to raise claims concerning RIO?” seems to find a negative answer in the draft, does it not? Then, claims of remedies for individual damage is not among the central issues of it and it might not have so much impact on this aspect of Kadi.
OTOH, is the point of relating the Draft to Kadi rather that only now the UN could be held legally responsible (say, by the council of Europe) for failure to comply to a customary – or general-principle-of-law-ish – rule like, possibly, in this example, a ban on bills of attainder and guarantee of due process? That would concern UN Security Council Resolution 1267 and others.
Or perhaps could the UN possibly even, by a reflective turn, be held responsible for the omission of providing such guarantees and precluding individuals access to court? That would maybe even concern the setup of the ICJ/UNSC?
(Can this “hard” legal duty of the preceding two paragraphs be compared in this way to the “softer” recommendations in B. Fassbenders UN-commissioned report on “Targeted Sanctions and Due Process” from 2006?)

If this is appropriate I would like to ask if someone would share any insights on these issues.
Thanks in advance – and thanks for bringing this issue up. I wouldn’t have given it much thought otherwise.

@Andreas Wagner: When it comes to Kadi, I’ve always argued that the ECJ was wrong and the CFI was right. The EU Treaties are still an “international agreement” 103 of the UN Charter. If the UN itself doesn’t provide a remedy, it is up to the state (in this case Sweden) to fashion a remedy, if need be under a “Solange”-type reasoning. That’s how I would imagine the future of international law: an ever more complex web of multilevel governance, with the state as ultimate guarantor of rights.
I’m not sure how all this connects to RIO. AFAIK, RIO is more about international tort responsibility of international organisations, along the lines of art. 340 TFEU/288 EC old. The ECJ’s case law on non-contractual liability under that provision is coming along nicely, it takes up 7 whole pages in the new Kapteyn & VerLoren handbook, but the EU is a bit too sui generis for it to function as a basis for RIO generally.

(FYI, under EU tort law, particularly the Schöppenstedt case, the Union can be liable for a Kadi-type SNAFU if it is established that “a sufficiently flagrant violation of a superior rule of law for the protection of the individual has occurred”.)

I’m not sure how you would expect the Council of Europe “to hold the UN responsible”. Are you thinking Bosporus? That might be interesting to try, but it would still be a case against a state, or, after the EU has ratified the ECHR, against the EU.

With regards to individuals – you are right that the draft articles are targetted towards IOs and states; there are a few relevant provisions for individuals however:

Article 32: Scope of international obligations set out in this Part:

1. The obligations of the responsible international organization set out in this Part may be owed to one or more other organizations, to one or more States, or to the international community as a whole, depending in particular on the character and content of the international obligation and on the circumstances of the breach.
2. This Part is without prejudice to any right, arising from the international responsibility of an international organization, which may accrue directly to any person or entity other than a State or an international organization.

Art. 48(3) may also be applicable.

11.12.2009
at 5:13 pm EST Kristen Boon

Just for clarification: While Art. 32(2) could provide for damage to an individual person’s right, there’s no way that the draft would put the individual in a position of “injured party”, entitled to invoke an IO’s responsibility, even under Art. 48(3), is there?
(On a side note, Charles Beitz’s “The idea of human rights” seems to suggest the same, i.e. that the state is the ultimate guarantor of rights, if necessary against international organisations. It’s just that I wonder if this is realistic, given that immensely powerful IOs could happen to be perpetrators of rights, leaving states with little means or incentive to work against them. That’s why I was asking about individuals being able to challenge the IOs directly. At any rate, RIO probably fits better to such an account than to Simma’s universalistic project.)
Thank you both for your responses.

An International Organization which has international legal personality, enjoys certain immunities and privileges in the conduct of its operations.(1)
Therefore, responsibility and accountability of an International Organization is important given the fact, that its actions affect the International Community.
The lack of regulation of International Organizations and the proliferation of these entities in the International Community makes desirable some sort of International Registry with Accountability for these organizations.
Today, who knows who has immunity status, leading to some illegitimate organizations having immunity, and no one knows what kind of business they are conducting under the cover of the legal entity which protects them.
The notion of responsibility of international organizations encompasses the responsibility of wrongful acts under international law, but an international organization only has territorial jurisdiction over a limited physical area recognized as the headquarters seat under its agreement with its host state, so responsibility cannot be determined by territorial sovereignty.(2)
In the absence of effective remedies against international organizations directly, attempts have been made to sue the member states, but since it is a different legal entity there is no recourse against them. In addition, not all international organizations have large amounts of capital, as they are funded by contributions from States, individuals or other organizations. These issues demonstrate the great need for accountability for these entities. Obviously there must be clarification on matters of International Law governing these entities and providing greater accountability and application of the law.

11.17.2009
at 7:09 pm EST CCJ

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